George Kabiru Mathenge v Muringa Holdings Limited [2019] KEELRC 1254 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee without a proper hearing is unfair, awarding him over Kshs 1.3 million.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in summary dismissal
The summary dismissal was procedurally unfair because the Claimant was not afforded the mandatory hearing under section 41(2)
Dismissal on grounds of gross misconduct required a hearing under section 41(2) of the Employment Act. Apart from suspension/leave to facilitate investigations, the Respondent led no evidence of a hearing; no minutes or hearing team members were disclosed. Investigatory explanations cannot substitute for the disciplinary hearing.
Substantive fairness of termination
The reasons for dismissal were not valid and fair; the Respondent failed to discharge its statutory burden
Under sections 43 and 45 the employer must prove valid and fair reasons for termination. The Respondent opted not to lead evidence; statements from work colleagues were never adopted and thus had no probative value, so the burden was not discharged.
Breach of contract - salary arrears and accrued leave
Both heads allowed; the Claimant's uncontroverted testimony on unpaid salaries and the leave form showing 69 accrued days were accepted
The Claimant's testimony that he was unpaid from July to August and received half salary for September 2015 was unrebutted as the Respondent produced no pay records. The leave application form dated 30 September 2015 showed 69 accrued days, and the Respondent did not contest the claimed Kshs 133,333/- or produce its own computations.
Remedies - notice pay and compensation
One month's salary in lieu of notice (Kshs 80,000/-) and 9 months' gross wages (Kshs 720,000/-) as compensation, based on about 9 years of service
Having found the dismissal unfair, the Court held the Claimant entitled to one month's notice pay. For compensation, the Court weighed length of service of about 9 years and awarded the equivalent of 9 months' gross wages at Kshs 80,000/- monthly.
Legal principles established
#- A hearing is mandatory in cases of summary dismissal under section 41(2) of the Employment Act; investigatory explanations cannot substitute for the disciplinary hearing
- The employer bears the statutory burden under sections 43 and 45 of the Employment Act to prove valid and fair reasons for termination
- Unadopted witness statements have no probative value as evidence
Court orders
#- 1.Declaration that the summary dismissal of the Claimant was unfair and that the Respondent was in breach of contract
- 2.Award of Kshs 200,000/- in salary arrears
- 3.Award of Kshs 133,333/- for accrued leave
- 4.Award of Kshs 720,000/- as compensation for unfair termination (equivalent of 9 months gross wages)
- 5.Award of Kshs 80,000/- as pay in lieu of notice
- 6.Total award of Kshs 1,333,333/- to the Claimant
- 7.Claimant to have costs of the Cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute; specific provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Kabiru Mathenge v Muringa Holdings Limited [2019] KEELRC 1254 (KLR)", Case Analysis (2019). Cause No 2054 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1254/eng@2019-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.